Court File and Parties

Court File No.: Orangeville OP11294381 Date: 2013-05-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Darrell Ronald Beck

Before: Justice G. R. Wakefield

Heard on: April 23rd, 2013

Reasons for Ruling released on: May 6th, 2013

Counsel:

• N. Sandercock for the Crown
• H. Black and N. Martin for the accused Darrell Ronald Beck

Reasons for Ruling

WAKEFIELD J.:

[1] Darrell Beck is charged with one count of possessing a controlled substance to wit: cocaine with an offence date of September 16th, 2011. A review of the Information reveals there were numerous Judicial Pre-trials. The trial commenced on March 21, 2013, and continued March 22nd, April 19th, 22nd, 23rd, at which time the Crown closed their case. Upon the Crown closing and the court recessing, Defence rose to request that their Charter Notice be amended to add relief pursuant to s. 9 and 10(a) of the Charter, having advised Crown counsel in the hallway shortly before coming back into court to make the application. The Crown is resisting the application.

[2] With the original trial time estimate exhausted, and a challenge to arrange the additional continuation dates in May, I directed that Crown and Defence to prepare full written submissions with a tight timeline to permit my ruling to be released May 3rd in order to afford both counsel some time in which to organize their briefs without losing those continuation dates and thank both counsel for their efforts in that regard.

[3] As can be inferred from the offence date, there is already a lengthy history to these proceedings. There was an extremely long period of time from the original charge, the replacement Information, the Judicial Pre-trials, and the setting of the trial dates before the Defence filed its Charter Notice of Application on February 19th, 2013. There was still another month before commencing the trial. Throughout that period of time there clearly was ample opportunity to assess the applicability of all Charter rights to the facts of this case, subject to undisclosed surprises during the trial itself.

[4] I have reviewed both sets of written submissions and each casebook, all of which were helpful in reaching my conclusions.

[5] The reason expressed for the late Charter application was simple oversight by Defence counsel. While I accept at face value the oversight explanation, this would be an oversight which survived eighteen months in the judicial system, each of the Judicial Pre-trials (I have received no indication from either counsel that notice of these Charter issues were raised in the pre-trials even if not included in the formal notice) reviewing and filing the Charter Notice in February, and even the month gap between the first two days of trial and its continuation during which Defence cross-examined on issues which included s.9 and 10(a) content.

[6] Also a factor is that the Defendant is represented by a well-known, experienced senior counsel ably assisted by junior counsel; the analysis would be very different if the Defendant was a self-represented individual struggling with legal interpretation and compliance with an unfamiliar Rules structure.

[7] The Criminal Rules of the Ontario Court of Justice came into force on July 1st, 2012, and govern the procedural framework for matters proceeding through this Court. Their fundamental objective is to ensure matters are dealt with justly and efficiently, so as to create a framework which balances fair dealing with the prosecution and defence as well as the impact of proceedings on witnesses and judicial resources.

[8] I have an overriding discretion to excuse non-compliance with any rule at any time in order to carry out that fundamental objective.

[9] I certainly reject the Defence submission that the Crown is not prejudiced as it was aware that the tenor of the cross-examinations included s.9 and 10(a) issues. The Crown's immediate reaction to the Defence application in court was to acknowledge that awareness to the extent of actually double checking the Defendant's Notice and relying on the absence within it of any reference to the additional Charter sections.

[10] At the same time I would also observe that both Crown and Defence counsel are senior barristers and would be aware that any testimony in the trial would potentially be grist for the Charter 24(2) analysis and especially any conduct by the detaining police force breaching any of the Defendant's Charter rights even if not directly the subject of a Charter Notice. That would somewhat ameliorate the degree of prejudice suffered by the Crown.

[11] I do accept the Crown submission as to the prejudice of having lost the tactical advantage of being a Responding party able to cross-examine on those Charter issues in which the onus is on the Defendant as well as assessing how it would have called its case differently. Permitting the Crown to reopen its case would lessen but potentially not eliminate such prejudice. Reopening the case would also have an impact on efficient use of court resources.

[12] The rights of the Defendant are impacted by a denial to permit additional Charter grounds which may impact the ability to make full answer and defence as asserted in the Defence submissions. That restriction would only apply to the specific ground of relief for those specific Charter sections but would not prevent application to consider police conduct in the 24(2) analysis of the s.8 claim which was properly served. As such, the 24(2) analysis might very well still contain submissions regarding police conduct which would include detention issues. In that regard, any prejudice to the Defendant would be lessened.

[13] It is not clear to what extent the trial testimony varied from the "binders" of disclosure on the issue of the Defendant being promptly advised of the reasons for his arrest and ongoing detention; apparently all witness officer duty memo book entries and occurrence reports were disclosed well in advance of the trial date; there was a technical difficulty in opening a video disk but which difficulty the Defence had been aware but did not pursue by way of further enquiry of the Crown prior to the trial commencing. In short, while Defence submits the additional issues were only apparent during the trial, the nature of cross-examination was such that the issue became apparent to me by the completion of the second crown witness yet the application not brought until after the close of the Crown case.

[14] In any event I would note that, unlike what may be the situation in a civil trial, an omission by counsel does not necessarily deprive a defendant of potential remedies, but instead results in a balancing of all the factors set out in the Rules and the caselaw.

[15] The interests of other witnesses are also a factor. Here, what appear to be all relevant officers have attended and testified. While the disruption to a police officer arising from a re-attendance may not be so extreme as for a civilian witness, there is still the disruption to the orderly scheduling of their respective duties and personal time, and the additional public expense of their re-attendance.

[16] The impact on scheduling court time and the requirements of other proceedings is likely extreme. This trial requires a judge from a different jurisdiction which in turn requires arranging coverage for that judge's base court. Scheduling additional days requires the availability of courtroom and staff ideally without disrupting previously scheduled trials in that courtroom or trials scheduled by either Crown or Defence counsel. Here each additional trial date added causes tremendous disruption of judicial resources acerbated by the requirement of scheduling judges concurrently from two different jurisdictions. Indeed, when canvassing earlier continuation court dates in this trial, Counsel for the Defendant offered scattered dates culminating as late as the cusp of Spring, 2014. At some point, delays in trials undermine the public confidence in the judicial system.

[17] The gravity of the alleged offence is a factor. All criminal offences are both grave and important. I do note that the current alleged offence is a reduced charge of lesser gravity. I also appreciate the severity of the consequences for this Defendant from a professional perspective is quite severe and any risk of incarceration would be far harsher on this Defendant assuming the need for protective custody.

[18] While there may be binders of disclosure and the trial duration extended from five to nine days (so far), that duration is in my view more a product of detailed and prepared questioning by both Crown and Defence as opposed to any real complexity arising from the charge itself.

[19] If the only factor to be considered was the right of the Defendant to make full answer and defence the result would be obvious, even where such prejudice is lessened. Here I must also balance a number of factors including the impact of any further delays on the administration of justice, the Crown reliance on the original Charter Notice, the availability of the Defendant to make submissions on 24(2) incorporating all of the police conduct and I find that all those factors result in the application being denied.

[20] This matter is one of those rare instances where granting the Defence request would result in unfairness to the administration of justice and an unjustifiable increase in expense and delay. I find that there is no less drastic option which would result in a fairer balancing of all the factors other than the deprivation of considering the additional Charter argument (R. v. Blom, 167 C.C.C. (3rd) 332 as cited in R. v. Tash, [2008] O.J. No. 200). The prejudice to the Crown would require the court's consideration of permitting the Crown to re-open its case if requested and sufficient time for the Crown to meet with not only the witnesses called at trial but potentially other officers mentioned in testimony to date. The manner of how any Crown case is called will be reliant upon the Charter Notice, and as such may even be the subject of a mistrial application by the Crown. To permit the Crown sufficient time to consider all those issues as well as the additional time which may be required for potential additional testimony would result in the loss or inadequacy of the remaining additional trial days set aside in May with potential continuation dates being as late as 2014 or the further disruption of other previously scheduled trials on days which both Crown and Defence and their related witnesses are all relying will be respected and protected.

[21] In my view, even allowing the Crown to split its case until after the Defence case was completed would result in requiring more trial days than those additional days already set.

[22] I also find the circumstances here to be more akin to that of R. v. Kutynec, 70 C.C.C. (3rd) 289, insofar as the timing of the Defence request parallels that of attacking unobjected to evidence after the close of the Crown case. While that decision clearly asserts that a trial judge has an obligation to consider exercising judicial discretion where the interests of justice so warrant to permit such defence applications, that court went on at pp. 294-5 to state that: "it is self-evident that objections to admissibility to evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence". That principle was again cited in R. v. Gundy, 2008 ONCA 284, [2008] O.J. No. 1410 at paragraph 20. Clearly, late Charter applications, which must still be afforded the utmost respect and consideration, are not sacrosanct.

[23] In my view, despite my great reluctance to deprive any defendant from asserting a breach of one's Charter rights, in the circumstances of this case, no less severe an option would prevent unfairness and maintain the integrity of the process. The balancing of all the factors set out above results in preserving trial fairness to all involved parties.

Released: May 6, 2013

Signed: "Justice G. R. Wakefield"